The principal legislation used for prosecuting alleged hate crimes in Spain is the Penal Code adopted in 1995. Despite being progressive legislation for its time, it contains a number of serious shortcomings that compromise its effectiveness.

Some examples:

There is no concept of “hate crimes” as such, which means the existing provisions, e.g. “prejudicial motive” in a crime, have to be stretched. This results in appeals and complaints of unconstitutionality and overbroad judicial interpretation, which in turn forces the courts to adopt very cautious interpretation of relevant provisions.

The clause of “provocation to hate” (Article 510 of the Penal Code) is vague and as a consequence is interpreted extremely narrowly: as provocation to a specific criminal act, against a concrete person/group, and the threat of violence must be “imminent” in order for a person making a “provocation” to be held responsible. The most recent example of such restrictive interpretation is found in a 2011 decision in a case concerning the distribution of anti-Roma brochures in the Badalona district of Barcelona.

Organizations lacking juridical personality do not fall under the scope of the Penal Code. This effectively exempts from responsibility the host of extremist neo-Nazi, neo-fascist and other ultra-right organizations (as happened for example in case of the infamous “Libreria Europe” in Barcelona) which are incidentally among the principal instigators of xenophobia. As of 2011, c.200 extreme right organizations were estimated to operate in Spain.

There is no clear definition of “weapons” in the Penal Code. Based on the established jurisprudence, the definition of a weapon is also rather restrictive: aside from fire arms, other “weapons” have to meet a host of criteria to be qualified as such. Media report that neo-Nazi gangs often attack their victims with baseball bats or using their heavy, metal-adorned boots, that is, objects that ordinarily are not regarded as weapons. And so they can effectively avoid charges of an “armed” assault under the law.

The list of legal shortcomings could continue, but the point is clear: the Penal Code requires considerable revisions in order to be an effective tool for both sanctioning and dissuading hate crimes.

Courts, however, are bound to apply the law that exists, not that should be. The sentences, few and far apart, have not been very convincing: usually suspended prison term, small fines or verbal admonitions. Application of racism/other bias as an aggravating motive of crimes has also been extremely limited, and as a consequence there is also an underestimated record of hate crimes within the judicial system. In addition, the Supreme Court has been criticized for failing to provide consistent judgments in order to establish clear juridical guidance for lower courts with regard to hate crimes.

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